The Justice Factory

One of the newest and brightest additions to the blawgosphere, Jamison Koehler, at his as yet unnamed blawg,* writes a post about ordinary injustice from his days as a Philadelphia public defender.  The post exists on two levels, the surface being the point he’s trying to make, about a judge who grew annoyed with him for “wasting” her time.

After years of doing this work, I had developed a good system for pulling up the things I needed to know at a single glance at my cheat sheet.  But that was only half of the battle.

The other half was to walk the client through the options and to come to a decision that the client was comfortable with. 

You are doing all of this with other clients knocking on the door because they need to speak with you.  You are doing this with the court crier coming out to tell you the judge is getting impatient and you’d better get your ass back in the courtroom.  And you are doing this with angry and confused clients, many of whom are distrustful of you as a public defender.

On that particular day, Jamison’s daughter sat in the courtroom to watch her father at work.  He tried to make sure the judge knew his daughter was there, so that she might show a bit of kindness in her demeanor and not embarrass a father.  Still, he had a hearing to do at the insistence of his client, which was, in the judge’s eyes, “frivolous”, and clients to speak with, which pulled him away from the well when the judge wanted to dispense “justice” at a more rapid pace than Jamison’s conferring allowed.

Despite his having sent word via the clerk to the judge that his daughter was in the gallery, the judge’s attitude did not improve.

Later, during a break, I asked her what had happened.  “You won’t believe the things they said about you when you were out of the room,” she said.

“Who said things about me?” I asked, expecting that she had heard some grumbling from within the gallery.

“The judge and the court people.”

This was a lesson for his daughter, but not the one he hoped would be learned that day.  Rather than gain respect for the system, or the court, the lesson was that the law is more assembly line than bespoke.  Slow down the factory that cranks out “justice” and you will annoy the foreman.  The foreman doesn’t want to be annoyed.  Ironically, as Jamison writes, the judge (with whom he was otherwise friendly) wanted to know if his daughter planned on becoming a lawyer after her experience in court.  The foreman had no idea that her impatience and disrespect might possibly be a bit off-putting.  To the foreman, the smooth running factory is paramount and, apparently, attractive. 

But there was also a subtext to Jamison’s post that likely wouldn’t occur to anyone who became so inured to working in the justice factory.  While Jamison takes well deserved issue with the judge’s assembly-line approach to her job, and annoyance with him for doing his too well, this part of his description is troubling.

Of the 40 or so clients I had on the list that day, probably 25 or 30 were there for trial.  And for each and every person on that category, I needed to know what the charges were, what prior convictions they had, whether or not a new conviction would violate the terms of probation or parole for one of those convictions, what the prosecution alleged, what my client had said, and whether or not we had any witnesses of our own.  If we did have witnesses, I needed to talk with those witnesses to assess their credibility and to determine if their testimony would help our case.  If the defendant was planning to testify, I needed to make the same determination with respect to credibility and prepare him or her for what was to come.

After years of doing this work, I had developed a good system for pulling up the things I needed to know at a single glance at my cheat sheet. 
This is unimaginable to me.  He’s staring at 25 to 30 trial ready cases, and first needs to speak with witnesses?  He’s got cases ready for trial where a defendant wants to testify but has yet to be prepped?  The reasons for this are obvious; he’s a public defender with a list of defendants to represent.  Every day, there’s a new list.  Every day, there are new people to defend.  The list grows longer, the hours in the day do not.  He’s trying to do everything he can to provide an adequate defense for every human being whose life is in his hands. He’s “developed a good system” to do so.  It’s a good system within a very bad system.

That Jamison would be expected to go to trial without weeks of preparation, inspecting evidence, visiting the crime scene, meeting with potential witnesses, prepping those you intend to call, preparing  in limine motions, memoranda of law, jury instructions, tagging evidence, reviewing documentation at least twice, if not three times, is disturbing.  There is so much to do to properly defend a person.  There is no time to do any of it when you have 25 to 30 cases ready for trial.

Like Jamison, judges sometimes grow impatient with me when I announce that I am not yet ready for trial because I haven’t had an adequate opportunity to review the prosecution’s belated turnover.  I’m often told that, “I’m sure a lawyer of your experience can figure it all out over lunch,” or some similarly half-flattering, half-insulting, dismissive comment intended to keep the assembly line of justice moving forward.  I refuse to bite on such comments, invariably replying that while I appreciate the court’s faith in my abilities, I nonetheless require preparation time lest my inadequacies deny my client his right to an adequate defense.  I do not embarrass easily.

It’s easy for Jamison to overlook the fact that, as a public defender, he had 25 to 30 cases ready for trial for which he was wholly unprepared.  That’s was his ordinary life as a public defender.  Ordinary injustice is what the factory produces, and it cranks out a ton of it every day.

*  Jamison, attempting to straddle the marketing blawgosphere and the substantive blawgosphere, goes by the name Koehler Law Blawg in the hope that it will draw business to him, while allowing him to write substantive posts and participate in the blawgosphere.  While his posts are interesting, his writing is excellent and he’s got much to offer, my emphasis on the substantive blawgosphere rather than the marketing blawgosphere precludes my linking to his “marketing name.” I hope that asides such as this will push Jamison to forego the marketing angle and give his blawg a real name, so that I can provide more helpful link love in the future.

23 thoughts on “The Justice Factory

  1. Kathleen Casey

    Notice that Jamison’s post describe him defending forty cases by himself and on the prosecution side of the factory there are six including two lawyers. That’s what comes of Working for the Man.

  2. Kathleen Casey

    You’re welcome. It helps your readers to know.

    He is interesting and informative because of details like that.

  3. Lorraine Sumrall

    I remember finding out that a man going to trial for murder (who later became our client) had only spoken with his public defender for 10 minutes in the months preceding the trial date. I was outraged and could not fathom that the system was really this bad. It’s really this bad, and it was a big eye-opener for me.

  4. SHG

    Sadly, it’s no surprise that it happens that way.  What never ceases to amaze me is how it’s become so routine and acceptable that it happens that way.  So ordinary.

  5. Brian Gurwitz

    The biggest surprise to me about criminal defense (after I joined the dark side and saw the light) is how little work so many retained attorneys do for their clients. Usually these are the low-cost defense mills, but definitely not always. At least in the OC, our public defenders have some checks in place to ensure that attorneys meet with their clients, etc. Not so in the private bar.

    PS – I love watching your mentally abusive relationship with other new bloggers. Praise them but then refuse to link until they give their blogs a new name. Do you do the same with your kids… tell them you love them but let them know they won’t be in the will unless they decide on some career other than acting, culinary school, etc.? 🙂

  6. SHG

    You’re right that there are retained lawyers who are worse (not as bad, as they have no excuse) when it comes to neglecting their clients.  When someone like that either comes to light by a story or blog post, it will likely find its way into a post here.

    As for my relationship with new bloggers, think of it as an incentive to shed some of the more flagrant marketing/self-promotional aspect in favor of being part of the conversation.   No matter how much I may like them, I’m not here to advertise for them, and the quickest way to being ignored in the blawgosphere is to persist in emphasizing marketing over substance.  As for the analogy with my kids, that’s just a truly bad analogy. 

  7. Richard L. Bitter Jr.

    It seems to me that an overwhelming part of the problem, the disproportionate funding of prosecutors vis-a-vis public defenders notwithstanding, is the equally disproportionate number of judges who were once prosecutors.

  8. The Other Jamie

    First, let me please assume that those of us who have been on your blogroll for say 3 years, are permanently grandfathered in, whether we post regularly/substantively any more or not. And no matter the name of their blog. If I’m wrong about that, please forget I even broached this subject, delete this comment, and let’s pretend someone hacked my accounts and is pretending to be me online.

    I’m going to respectfully disagree with your characterization of Jamie’s blog title as an overly SEO type name. Calling it the “Koehler Law Blog” is not going to be particularly helpful to any potential marketing efforts. Anyone looking for him by name, is probably a past client, or has been referred to him, and he probably ranks fairly high up in the natural Google results for people who query any variation of his name and the words law, lawyer, criminal defense, etc.

    Now, on the other hand, if he had gone live with some ridiculous title like “The Washington D.C. Criminal Defense Lawyer Blog”… that would be another story. When other bloggers linked to him with those “keywords,” Google would pass on a little juice for those search terms. Supposedly. I’m not an expert but that’s what the rumor is.

    But then we could at least suspect him of being in it for all the wrong reasons.

  9. SHG

    I’m going to say something here which I will deny saying if anybody ever asks, but I’ve found that CDLs who become judges are, more often than not, the nastiest, hardest-assed, laziest SOB judges around.  Not all, but most.  I never said this. Never.

  10. SHG

    You were so grandfathered in (remember, you were here before me) until your second paragraph, whereby I will now change your link to Jamie’s funniest poodle stories.  That’ll teach ya.

  11. Mike

    Glad you’re still finding the good crim law blogs. My blog-reading style is more Norm Pattis style: “Scott will find the good blogs.”

    Love ya,
    Free Rider/Gen Y Slacker

  12. The Other Jamie

    Richard is correct. With apologies for hijacking the thread, here’s the joke in its fully known form

    “Naked blonde walks into a bar with a poodle under one arm, and a two-foot salami under the other. The bartender says, I guess you won’t be needing a drink. Naked lady says…”

    Joke interrupted at this point with more basic slapstick humor, as Judd Nelson (who plays the angry young rebel character) falls through the ceiling.

    It’s the only poodle joke I know, and there’s not even a punch line.

  13. Dennis Murphy

    Part of the problem that Jamison Koehler describes in Philadelphia is institutional. The PD office there practices a form of “horizontal” representation, so that many PD’s inherit a slew of new cases during a 2-3 week stint in the trial parts – those cases are inherited from the previous PD, who first did the arraignment and/or the preliminary hearing. It’s more of an assembly line operation. At least that’s my understanding. By contrast, most PD’s practice (or try to practice) vertical representation – a method blessed by the national organizations like NLADA and ABA – in which it’s your case from cradle to grave, so to speak. If I’m wrong, Jamison, please let me know.


  14. SHG

    I hope you’re right.  If this is how it goes with vertical representation, then it’s way worse than I would have thought.

  15. The Original Jamie

    Scott: I’m in Norfolk, Virginia, sitting for the Virginia bar, so I missed this entry when it came out. But thank you. I appreciate the “link love.”

    You and I have already gone back and forth on the marketing issue, and I think we understand each other on that. I respect your views, and I am slowly coming around to them.

    But the title of my blog is not a marketing issue, just a function of my own lack of imagination. All the good names seem to be already taken. “The Other Jamie” sounds like a good idea. Maybe I’ll try to beat Jamie Spencer to it. I am also open to other ideas.

    You are absolutely right about the assembly-line aspect to the horizontal representation the PD in Philly uses to handle the enormous caseload of cases. It’s not that anyone in Philly decided that this was the best way to provide the best representation for clients. It’s that it seems to be the only way to provide any representation at all. We were always envious of other PD offices that were able to use vertical representation.

    As I understand it, the Public Defender Service (PDS) in DC does use vertical representation. Then again, PDS represents only 20% of indigent defendants in D.C. as opposed to 70% in Philly.

    I should also note Philly PDs do have more time for felony cases. For felony bench trials, for example, we would have 30 to 40 clients per week, instead of per day, We would also have the preceding week off to meet with clients and to otherwise prepare for trial. And there was an elite group of PDs tasked with defending people on murder, rape and the most serious charges.

    Even then, you are absolutely right to put the unfairness of all of this into perspective. I clearly lost some of that perspective from having done it for so long. I was outraged that the judge wouldn’t give me a few more minutes to convey an offer to a client. You were outraged that the judge and I were both in this position to begin with. It is in fact a terrible state of affairs.


  16. SHG

    I’m happy you were able to stick your head up out of the books for a few minutes to stop by.  I’m even more happy that you understood why I wrote about you and your post, not as a criticism but to offer a different perspective.  You are definitely ready to leave the horizontal behind and start doing vertical.

    As for the name of your blawg (and I’m begging you to name it), that I can’t help with.  I really suck along those lines.  If you want, we can hold a contest, but you have to promise to use whatever name wins, and it may not be pretty.

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